re: "military interrogators could torture detainees as long as their only motivation was sadism"

funny typo

well, it'd be funny if it weren't so sad

Whoops, didn't see this up and put a blog up about it just now.

I think Edley was making a pointed remark in using the term "decider". I'd say as far as the academic world goes, his criticisms of Yoo are pretty sharp. He starts off by saying Yoo is a "successful" teacher, but then says that the memos that Yoo wrote were legal jokes and that most of the entire legal community, including Yoo's fellow faculty members, disagree with them.

shorter Dean Edley--

Nuremberg? Never heard of it.

It seems clear that Yoo is entitled to his post. He hasn't yet been indicted, tried, convicted. I think Edley's hands may be tied here.

That being said, some of Edley's argument, the part summarized by Paul

As critical as I am of his analyses, [...] President Bush and his national security appointees were the deciders.

If it were up to me I would certainly see that a lot of pressure brought to bear on Yoo to resign & collect the ever-plentiful wingnut welfare rather than draw a paycheck from the citizens of California.

Could some ethical/legal beagle help me out here. Suppose some criminal defense attorney were hired by a law school to teach Criminal Procedure, and it was pointed out that he had gotten a rapist off who subsequently raped and killed, would that be a reason to ask the school to fire him/her. Are there any moral judgments on the career of a lawyer that disqualify him/her from becoming a law professor. What about the one who spent millions of taxpayer dollars trying to nail then-president Clinton; has he ever been challenged for getting the deanship of a law school? Do lawyers get a free pass to move to public funded academic posts when they have been skunks in the woodpile of history? Could the resume of an applicant for a teaching job say the following (hypothetically of course): "I know my field of law better than anyone else. That I abetted a destructive program for my previous employer is not relevant to my ability. I'm a lawyer; I get a free pass on ethics."

Well, Shrub wasn't the only president to call himself 'The Decider'... I recently viewed a film clip of Eisenhower describing himself as 'The Decider' when talking with the press about Nixon's leverage as a Vice-President.

Berkeley supports fascism.

Isn't there a guy in Gitmo right now who was the freakin' driver for Osama bin Laden? He might not have directed the 9/11 attacks, but he was a, uh, vehicle in the attacks and so we'll hold his sorry ass until Kingdom Come, I guess.

So all Yoo did was write the memo? Somebody else was the Decider? Tell that to the jerk at Gitmo.

Really, Dean Edley? You think that because Yoo didn't personally torture or order other people to, he only cobbled together dubious legal opinions that declared it was okay, that's no reason he shouldn't be teaching Constitutional law?

The fact that he wrote that the Fourth Amendment doesn't prohibit domestic searches by the military "in wartime," that the Constitution's explicit assignment of regulation of the armed forces to Congress means that they're subservient to "commander in chief powers," and cited legal precedents to support his claims when they in fact said the exact opposite, none of these are "material breaches of the professional ethics" unless he's actually broken the law?

Would anyone in their right mind (other than a would-be dictator or corporate criminal) want to work with a lawyer trained there?

To hell with what you think about our school using Bush torture and 4th ammendment violator attorneys to train young lawyers.

signed

Dean of Whores
Screw U.

Just another reason Cal sucks. Are they the Golden Bears because they keep tryin to piss on us?

Uh no. He was told to write an opinion that would provide legal cover for torturers. He did. He's as culpable as they are.

He has a duty to interpret the law correctly, to the best of his ability, he just made shit up and it got people killed.

Getting fired should be the least of his worries.

O my god what has happened this country? I can't believe that. Sweet Jesus - every single person who knew about this and said nothing is complicit in war crime for the love of god - I cannot believe this is the country I grew up in.

I am appalled.

Recent PBS program, Bush's War, makes it clear that Yoo was sought out, because he was willing to write what ever the Cheney Cabal wanted. They shopped around until the found him, and he did not use any independent judgment. He just wrote what the Cheney Cabal dictated.

Ja, und Yoo vas just ein gut soldier.

This is the problem I have with the Dean's statement:
"Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?"

He is talking about two different subjects. Whether or not Yoo breached the Professional Ethics required of lawyers is quite different than violating a criminal statute. We can sit around and wait to see if he is criminally indicted and found guilty... but that does not mean he should retain his law license until that indictment occurs. If someone were to file a complaint against Yoo in the bar where he is licensed... and if after an investigation it is decided that he is "unfit" to hold a legal license in that state...he will be disbarred. I doubt if any law school would retain a law professor who no longer has a law license... it is a good first start while we wait out the .... what did Rumsfeld call it "a long hard slog"?

Nothing wrong with shredding the Constitution? And teaching, as long as your president starts a war the Constitution doesn't matter he can do as he wants! He is omnipotent! He can torture. He can wiretap citizens! He can lie his ass off! All the lawyers working at the WH, DOJ and Pentagon were/are full of shit.

Let's say Yoo was, hypothetically speaking, a lawyer for Enron.

And let's say he wrote a memorandum to his bosses saying, "hey, loot the company, screw the shareholders and cheat consumers to enrich yourselves. It's legally A-OK. None of those laws that, on their face, say what you're doing is illegal apply to your conduct because you're really great guys."

And then, let's say that when they were put on trial, all these executives asserted an "advice of counsel" defense to negate the intent element of the criminal statutes they violated.

Under those circumstances, the pretextual nature of Yoo's advice would be sufficient evidence of his complicity in a criminal conspiracy to cost him his license.

My point here is that the Geneva Conventions are, like all treaties, the law of the land. Yoo's advice was so facially pretextual, and the way he bypassed his superiors was so unusual, that one could make out a prima facie case that he was complicit as an accessory before the fact in a conspiracy to commit war crimes.

We tossed people into jail in the Nuremberg trials for doing stuff like that.

Actually, the typo "military interrogators could torture detainees as long as their only motivation was sadism" expresses the real outcome of the policy almost perfectly. The Yoo analysis excuses torture in any case provided some ideological excuse can be found (for the good of the USA etc): it's forbidden only if one can (impossibly) show that the torturer acted chiefly from libidinal thrill. But isn't that exactly the result of Bush-style pseudo patriotism and nationalism? --empty of practical morality or purpose, it promises that feelings of personal worth and psychological well-being(=libidinal thrill) can accompany any depraved act done for the alleged higher purpose of national security.

Paging Mistah Kurtz...

Now it is true that during the McCarthy period many faculty (with tenure) throughout the country were fired for Communist ties or even the failure to sign loyalty oaths. It is true that more recently a Professor at a Colorado (?) school was forced out for describing 9/11 in terms of "chickens coming home to roost". Now those were cases well-documented of academic firings over content not over illegal acts. The law dean here seems to play at not knowing the rich heritage of purging of leftwing political ideas by the academy and its administrative enforcers. In Yoo's case, his advocacy of torture seems to be in a class by itself. Would the good dean feel the same if one of his law Professors came to class in full Nazi regalia? Probably. Would he feel the same if one of his law professors came to class decked out in Black Panther outfit? You cna be sure anyone who did would be fired instantly.

- although of course he already had the reputation from his torture memos when he was hired.. OOC@3.57

Now why would any school hire a bu$hist loser with a torture memo rep? Red lights and sirens should go off at the employer's place when a bland, fat, compliant sack of turd like Yoo walks in with his bu$hist resume and his torture rep. It's not as if the world doesn't know that nobody smarter than bu$h was allowed in the room.

Why would Boalt even want him? I don't get it.

Tell ya what, Yoo's Buddha face gonna give Bubba's system what IT wants.

Academic freedom did not Ward Churchill, an equally offensive individual. Of course he was not fired because of his statements in relation to 9/11, that had nothing to do with. His colleagues saw that as part of his academic freedom. They were shocked however, shocked to discover had misrepresented an important statute in the field of federal Indian law, the General Allotment Act of 1887 in his publications and on top of that he made false characterizations in his discussions concerning the Indian Arts and Crafts Act of 1990.

Well in light of those transgressions I think we can all agree that he had to go.

I wonder how much plagiarism, misrepresentations and other factual error's Mr. Yoo has committed? Perhaps the dean should not worry about on the job torture enabling and focus on Mr. Yoo's stance on the legitimacy of the adjustments of the standards used to allocate payment for sugar cane futures based upon the viscosity of the resultant molasses. I imagine they might be shocked by what they might find and send him right out the door.

I gladly yield the point to Liam. Patrick Fitzgerald and James Comey were -- ARE -- better than that, and thank God for them. To be honest, this whole business has made John Ashcroft look good. If I met the man today, I'd have to apologize for my perception of him. (Not to be too snarky, but do you think Ashcroft looks in the mirror every day and thanks God specifically for Alberto Gonzalez?)

Atropos -

John Yoo got tenure in 1999.

That was before the Bush Administration and before torture memos by John Yoo and other Republicans.

That being said, I dont know what the school should do with him. I think the whole Yoo episode is a pretty good example of what Hannah Arendt called the 'banality of evil' - Yoo never struck me as a particularly evil or diabolical person, just someone who ended up giving the system what it wanted.

Rather how Albert Speer gave Hitler what he wanted.

As far as I'm concerned Yoo is one of the most immoral and uttely disgusting human beings walking around. Every single person involved in this in any way is immoral and utterly disgusting.

This is the most anti-American bunch of ideologues we've ever had the misfortune to be cursed with and I have half a mind to devote the rest of my life to seeing them brought to justice. Every one of them. They have made you and I responsible for this - this is a democracy - they did these things in our names and I want redress.

The "decider" didn't put his name on the memo. Yoo did. Yoo wrote it. Yoo defends it.

To defending Yoo's writing of the legal brief as being only the production of an analysis for his client is ludicrous. The memo forgot to include Youngstown in its analysis. The memo was a legalistic piece of crap. If Edley can't find it within himself to fire Yoo for authoring an official memorandum that exculpates torture and declares out of hand that the President can decree the 4th Amendment out of existence, then he should fire Yoo for his gross incompetence in authoring such an unprofessional, poorly researched piece of crap.

Edley will fire Yoo. Give him time. It will happen.

Is being a Consiglierie of sorts a violation of the canon of legal ethics?

It's being a party to the war crime.

Anyone who advised and/or kept their mouths shut are parties to the war crimes.

p.s.

OutOfCountry, thank you for providing
some rational info and assessment...

Want to learn law from the hacks who don't know how to apply it? Come to Berkeley!

CONTACT:

John Yoo, Esq. Hans Frank Professor of Law Boalt Hall University of California Berkeley

I believe that Yoo was involved in a systematic process to find "legal" justification to what all knew were illegal acts. He did not just establish a position; he worked with others to use that position to enable them to enact their radical agenda.

This is not a tough call.

Another reason why I'm glad I went to Stanford Law School. If I were in Professor Yoo's class, I would have a very hard time disguising my contempt.

What about Condi?

What big time job is she headed for? She's likely too important now for mere Academia.

Her words to the CIA officer,

"It's your baby. Go do it."

From 'Today's Read'

Then-National Security Advisor Rice, sources said, was decisive. Despite growing policy concerns -- shared by Powell -- that the program was harming the image of the United States abroad, sources say she did not back down, telling the CIA: "This is your baby. Go do it."

Rule: Lawyers, when they make frivolous legal arguments, they can be attached to criminal conduct relying on that legal argument; Justice Trial.

I'm not buying the Dean's argument. There are two issues: The legal memoranda; and the alleged illegal conduct. We're not yet sure whether the memoranda was written before or after the alleged illegal conduct. If it's written after, the it does not fall under the "pre-decisional, deliberative" shield. If it's the latter, then the issue isn't whether Yoo is a criminal defense lawyer, but whether the subsequent conduct unreasonably relied on his memo. If a lawyer permits, condones, argue for, or assents to alleged war crimes, and those argument are frivolous, then the lawyers' legal arguments can be attached to the subsequent alleged illegal conduct.

The Dean has not made the case that Yoo's statement were or were not frivolous; he's only said that in his opinion the memo does not rise to the standard warranting Yoo's removal. That's an administrative decision, which has nothing to do with whether a court would or would not adjudicate Yoo with frivolous arguments, or attaching those arguments to the subsequent alleged illegal activity.

Lawyers at Nuremberg in the Justice Trial were adjudicated with war crimes because the court officers' opinions (lawyers and judges) were, in the view of the court, frivolous and failed to fully enforce the Laws of war. By making a sweeping asserting that Geneva did not apply, as a restraint, on American forces, Yoo's memoranda appears to satisfy this element.

The Dean has not adequately addressed the legal issues, Yoo's alleged frivolous statements, or the alleged misconduct relying on Yoo's alleged frivolous statements. The Dean is not a court, he's made an administrative decision not to take administrative action. This should not be confused with a legal opinion of any court that Yoo's comments were or were not frivolous; or that Yoo's legal opinion is or isn't attached to those subsequent alleged war crimes.

This is far from over. The question turns now to whether the Dean, in the view of the Board of Regents, has or has not adequately considered Nuremberg, frivolous arguments, and the legal theory linking or not linking a legal memoranda/lawyer opinion with subsequent illegal behavior. The Dean does not appear to have closed the issue, only not decided yet to remove Yoo. We'd have to go back to the Dean, through the Regents, and ask, "Is your decision a final administrative decision, and will you not review any legal decision, precedent, or future court case against Yoo before reconsidering this decision?"

Edley entirely misses the point. He employs Yoo to teach consitutional law. Yoo's torture opinions, and apparently his 4th amendment opinions, demonstrate he has a dangerous and incomplete understanding of the constitution. Why would any school pay him to pass that poor understanding on? As a law student, why would I pay to be taught by someone with Yoo's understanding of the constitution? More importantly, why would my parents pay for that?

"I want all them tried"

Yeah, good luck with that.

These people are masters of abusing power
within the system.

The question now is does history (appropriately)
tar the Bush 43 Admin (aka Nixon) for their
despicable behavior, or do we focus on Yoo
and let the media rehabilitate the Bushie top
tier a la Bush 41? (how soon we forgot Iran-Contra).

Here are the Berkeley Rules. Short of conviction, even if Yoo were disbarred, the Dean would likely not fire him. Students are not required to take his classes, and donors are not required to provide funds to the school. If Yoo stays and is not convicted of any crime, the only leverage would be financial.

From Edley's Jan. 2008 letter:

"From alumni and friends: a $125 million capital campaign—the Campaign for Boalt
Hall—10 times the size of our last campaign

We are on track toward our goal, having raised $46 million thus far—almost triple the amount we raised
in Boalt’s entire previous campaign. Last year, alumni and friends contributed $14.5 million, a 22 percent
increase over the year before. And, remarkably, our 2007 J.D. and LL.M. graduates set a record by achieving
100 percent participation in their class campaign—up from an already astonishing 97 percent from the class
of 2006.

The Dean’s Society of annual $10,000+ donors now numbers over 200."

What does his work for the White House have to do with his position at Berkeley? Calling for him to be fired from Berkeley is absurd and indeed is a threat to academic freedom.

If Dean Christopher Edley can't see the personal moral bankruptcy of Mr.Yoo's work product and character, then perhaps he, too, should be dismissed for his lack of critical judgment. As a Cal alumni, I'm sickened, and saddened, by the Dean Edley's twisted legal apology for Mr.Yoo's faulty logic and debasement of the Constitution. Perhaps they should both find a new home at the Hoover Institution. Go Bears!

testing writes:

There are two issues: The legal memoranda; and the alleged illegal conduct. We're not yet sure whether the memoranda was written before or after the alleged illegal conduct. If it's written after, the it does not fall under the "pre-decisional, deliberative" shield. If it's the latter, then the issue isn't whether Yoo is a criminal defense lawyer, but whether the subsequent conduct unreasonably relied on his memo. If a lawyer permits, condones, argue for, or assents to alleged war crimes, and those argument are frivolous, then the lawyers' legal arguments can be attached to the subsequent alleged illegal conduct.

In the first instance, "If it's written after, the it does not fall under the "pre-decisional, deliberative" shield.", here's what I think it falls under: (a) being an Accomplice of the act, (b) Obstruction of Justice, (c) Abuse of Office and (d) Official Malfeasance. Most certainly there are laws that will put Yoo on the hook for essentially condoning something he should know full well is illegal, and then doing nothing to stop it.

A couple reasons why pillsbury dough boy Yoo should be fired.

1) Any law professor who is unaware of the popular, let alone legal academic notion of the Fourth Amendment ought to be shit-canned.

2) Below a few complaints listed in the Declaration of Independence:

a) "He has affected to render the Military independent of and superior to the Civil Power."

b) "For quartering large bodies of armed troops among us" (Can everyone say Quartering and Intolerable Acts?)

c) "For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States"(Contractors are allowed to commit war crimes in Iraq; now Yoo wants to suspend the Constitution here in American?

If that asshole isn't even familiar with early American history and myth, why should he Boalt Hall retain him?

It wasn't for nothing that most JAGs, actual wearers of the uniform, came out against torture. In addition to the fact that the techniques are a violation of the Army Field Manual, largely ineffective and detrimental to the good order and discipline of the Armed Forces, torture crumbles the moral foundation that the UCMJ and U.S. law stands (or should) on.

How in the hell can they be expected to try enemies accused of war crimes if our standard is "organ failure, impairment of bodily function, or even death?" By that standard, an enemy can inflict all manner of pain and evil and argue--legitimately--in court that his actions fell short of our own definition of torture. What than? Convict them and say winners can employ a double standard?

Yoo is a perfect example of the Bushie psuedo-tough guys who've lost perspective because of 9/11. See what happens when chickenhawks such as serial draft-dodger Cheney, Feith and the rest of the non-serving pussies are in control? They seek out manliness street cred by embracing anything perceived as tough. But there manginas are exposed. Five deferment Cheney is a hawk only because the press says so. And the press shouldn't say so. Any description of Cheney should be preceded with the words "multiple draft-dodger who turned hawk andter he was safe. . ." Same for Feith, Wolfowitz and most of those neocon assholes.

Virtually all that we have learned of late on this subject was prefigured in Senator Kennedy's questioning of Alberto Gonzales at his confirmation hearing in January of 2005. Kennedy's questions were quite specific and detailed. Mr. "I Do Not Recall" was as forthcoming then as he was later during the U.S. Attorney's inquiry. What is striking about that line of inquiry at the time, and why I remember it so well, is that Kennedy kept going after him, round after round after round. To the point where Specter was really annoyed, urging him more than once to cease so that the hearing could end. I must find that transcript. Hmmmmmmmmm....

Look, let's be clear-headed here. This guy Edley is the real pig and he is aching to be fired along with Yoo, and Berkeley should not hesitate to kindly oblige him, directly.

Trivializing torture based on sloppy, unprofessional mis-analysis, then hiding the memo from your boss and slipping it to Rumsfeld, this is not the stuff that academic dignity is made up of. Edley knows this perfectly well and he has oafishly decided that those who crave justice can go cram it. He has simply taken a sober, clear-eyed, morally indefensible position to stand by a modern Eichmann. Period. That's all you need to know about Edley. It is a black disgrace on Berkeley, and the Chancellor Robert J. Birgeneau should move quickly to rid the university of the twin scourges of Edley and Yoo.

Well, I suppose he was not the decider. Would the distinguished dean of the distinguished law school agree that he was the enabler? Or, perhaps, the distinguished dean thinks that Mr. Yoo was just doodling and, accidentally, the words formed into a cogent justification for torture - sort of like the way Shakespeare wrote Hamlet (as is well known in the distinguished law school in question, Shakespeare could hardly write, but somehow the words arranged themselves into that play)

Having read the dean's statement, I think the dean was saying that neither he nor the faculty nor the university has the authority to fire Yoo. If Yoo was charged and judged guilty of an ethics violation by the Bar or charged and found guilty of a crime, then Yoo's situation is quite different.

If you are going to have a rule of law, then I do not think you can characterize his statement as weasel-words. It is some Bar association or established tribunal that needs to take action. A law school is not a tribunal; it's a law school. They made a bad tenure decision. If it had not been Yoo, the administration would have found someone else to "provide bad ideas and give even worse advice" -- to quote (almost verbatim if not verbatim) the dean's characterization of Yoo's work for the administration.

I hope that Mr. Yoo gets his hearing in the Senate and one of the Senators reads that sentence to Mr. Yoo. Not exactly a glowing recommendation and a statement, that if patently unsupportable, might put the dean and the law school in a lot of trouble. This would be like the Chief of Surgery calling a member of his staff a butcher on prime time. I don't think Mr. Yoo got what one might call a free pass.

How do we feel about the criminal defense lawyer?

If we find ourselves accused of a crime (especially if we are guilty...), we feel like we ought to borrow from our relatives to come up with the necessary fee to hire this lawyer.

We have, for better or worse, a "justice" system based not upon community consensus (eg, China) or impartial investigation by a neutral civil servant (Europe) but upon a contest of *equally empowered (and financed) advocates the outcome of which will illuminate the truth for the finder of fact.

When you get caught up in that system, you want a lawyer who will go to the mat for you, not one who lays down and dies because he is second guessing the outcome of an acquittal.

That said, and recognizing that vindicating the interests of intellectual freedom via a system of tenure may force us to swallow his continued feeding at the public trough, I suggest paying Yoo, but providing parallel "sections" of his courses so that the students may vote with their feet.

Let him teach to an empty hall. He will soon resign in shame.

*of course, this is fantasy, since almost no individual has resources equalling those of the state

Could the memos get Yoo disbarred?

If he were disbarred, presumably that would trump academic freedom (and tenure, which Yoo probably has).

If the memos aren't sufficient for disbarring him, Boalt is correct to keep him on.

I hope they disbar him.

Fire John Yoo. How about firing John f. Burns and Michael R. Gordon, both of the NYT? I guess Judith Miller just got unlucky. They are all enablers. Aren't they?